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Wednesday, July 10, 2013

ECHR’s Grand Chamber says whole term Life Sentences without review are inhuman and degrading treatment, Article three violation of human rights should never have happened in the UK, we don’t weaken society by giving people their rights, quite the opposite in fact

Dear All

One of the partnerships that haven’t really
worked well is that of politics and law, skewered by parties for their
political advantage..

Human rights are important, but they are
under attack from politicians who should know better.

Recently I did an article on the Think
Scotland website on prisoner voting rights, my position is that prisoners should
be allowed to vote, I also think there should be a criteria of eligibility
which should be worked out.

Although many people attack the European
Union for different reasons, we should be grateful we are members; I have
always been a fan of Europe even when the EU institutions haven’t worked as
effectively as they could have.

The European Convention on Human Rights is
an important work, the Strasbourg court has delivered some fine legal judgments
which we in Britain should have arrived at by ourselves.

But didn’t!

We all recognise that everyone has the
right to a fair trial, the Article Six rights are the corner stone of a fair
and just society, and rightly we have an independent judiciary. People recognise
this as important and it is, without an independent judiciary, we would live in
a Police State where politicians would decide ‘justice’.

In Britain, some people convicted of
horrendous crimes get whole-life jail sentences without any prospect of release.

Certain criminal cases become so high
profile that there is trial by media with politicians jumping on the bandwagon,
‘tough on crime, tough on the causes of crime’. Emotion shouldn’t play any part
in the application of law.

I dislike trial by media and especially when
politicians use a particular case for their own political advantage, it is
plainly wrong, and something we should all guard against.

The European court of Human Rights has
ruled that whole-life jail sentences without any prospect of release amount to
inhuman and degrading treatment of prisoners.

Is this correct legal judgment?

The answer is Yes!

People should have the right to have their
cases reviewed by an independent body, this does not mean they should be
released, however, in a fair and democratic society; we should operate on the
basis of laws.

The landmark judgment will set the ECHR on
a fresh collision course with the UK government who should be able to come to
this decision by logical means. It is because
of rather out-dated notions on crime and chance of re-election that has stopped
progress on many issues to do with prison reform.

In law, you aren’t asked to like judgment
or allow your own prejudice to be a barrier to curtail the rights of others.

Although the ruling is correct it does not
mean that any of the applicants the convicted murderers Jeremy Bamber, Peter
Moore and Douglas Vinter are likely to be released soon.

In its decision, the Strasbourg court said
there had been a violation of article 3 of the European convention on human
rights, which prohibits inhuman and degrading treatment.

Human rights at their core are all about
commons sense and decency, however, since the European Convention on Human
Rights documents was written, I believe that like all legislation there is
scope for review and upgrade.

Although times change, common sense and
decency do not.

The judgment said:

"For a life sentence to remain
compatible with article 3 there had to be both a possibility of release and a
possibility of review."

The court emphasised and it is worth
reinforcing this legal point, that "the finding of a violation in the applicants'
cases should not be understood as giving them any prospect of imminent release.
Whether or not they should be released would depend, for example, on whether
there were still legitimate penological grounds for their continued detention
and whether they should continue to be detained on grounds of dangerousness.
These questions were not in issue."

Was this a case that was straight forward?

Again, I would say yes.

The judges in the grand chamber at
Strasbourg, the appeal court above the ECHR, found by a majority of 16 to one
that there had been a violation of human rights.

16 to one!

Giving people human rights doesn’t weaken
society, allowing politicians to abuse the law does, their argument is based in
part of their personal beliefs which they invite you to accept and surrender
your own judgment.

I am not saying that everything in human
rights is perfect; law is always open to how people view a particular piece of legislation.

The ruling comes after the Home Secretary,
Theresa May, voiced her frustrations with the European courts in the Commons in
the wake of the lengthy fight to deport the radical cleric Abu Qatada from the
UK.

The problem in the Abu Qatada case was that
Jordan in the past has used torture, and Britain hasn’t signed up to that,
which is why it has taken so long.

Through-out the world, it would be better if
there was a global understanding of human rights which everyone could sign up
to. Perhaps the United Nations could lead the way and work with governments in
a new age of enlightenment.

In its judgment, the grand chamber said:

"The need for independent judges to
determine whether a whole-life order may be imposed is quite separate from the
need for such whole-life orders to be reviewed at a later stage so as to ensure
that they remain justified on legitimate penological grounds."

It added:

"Given that the stated intention of
the [2003 Criminal Justice Act] was to remove the executive entirely from the
decision-making process concerning life sentences, it would have been more
consistent to provide that, henceforth, the 25-year review [of whole-life
sentences], instead of being eliminated completely, would be conducted within a
wholly judicial framework rather than, as before, by the executive subject to
judicial control."

The European Court fixed a problem which
manifested itself in the 2003 Criminal Justice Act under the then Labour
Government.

The new British judge on the court, Paul Mahoney,
pointed out in his comments that the UK government was "of course free to
choose the means whereby they will fulfil their international treaty
obligation" to abide by the judgment.

Hopefully rather than drag their heels I
would hope that the coalition will act, however, I don’t think this close to
the General election we will see any action.

Commenting on the decision, Rebecca
Niblock, a criminal law solicitor at Kingsley Napley LLP, said:

"No doubt there will be renewed calls
to pull out of the European convention on human rights and repeal the Human
Rights Act. Yet Theresa May would do well to keep a sense of proportion: a
right to have the sentence reviewed is quite different from a right to be
released, and the number of prisoners affected is tiny – 49."

She added:

"England and Wales lag behind other
European countries in the use of the whole-life sentence – the only other EU
country which uses it is Holland. The repeated calls to withdraw from the
European convention carry a huge risk of undermining the UK's reputation
abroad. There is only so much the UK can say to other countries about their
human rights records when they show disdain for judgments which go against them
at Strasbourg”.

And she agrees with my point that:

"Making political capital at the expense
of the rule of law is a dangerous game."